Chief Justice Rehnquist: We will hear argument now in Number 85-2121, Arizona versus William Carl Mauro.

Mr. Roberts, you may proceed whenever you are ready.

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

The Arizona Supreme Court has said that permitting William Carl Mauro's wife, at her insistence and against the advice of a detective, to speak with him with an officer present constituted the functional equivalent of custodial interrogation.

We maintain that in reaching that conclusion, the Arizona Supreme Court misapplied this Court's reasoning, analysis and concerns in both the Miranda and Rhode Island versus Innis decisions.

When we hearken back to Innis, it explained in detail what Miranda meant and that encompasses this Court's definition of custodial interrogation and the functional equivalent of it.

We find that the Court's concerns, as voiced in Innis, were that the combination of interrogation and custody might work a compulsion upon the will of the accused that might subject him to the will of his examiner and undermine his privilege against compulsory self-examination.

However, this Court also said in Innis an important thing that was ignored by the Arizona Supreme Court in its analysis here, and that was that interrogation as conceived in Miranda and as clarified in Innis had to involve a degree of compulsion, and that must be police compulsion, above that which is necessarily inherent in custody itself.

Now, the only thing, Your Honors, that happened in this case was that Linda Mauro insisted upon seeing her husband.

The police acquiesced in that request, and that an officer was present for valid reasons, the trial court found, and the officer overheard incriminating statements and tape recorded them with a tape recorder that was in full view, of which Mr. Mauro was aware, and the trial court also specifically made that finding.

We submit that simply is not the functional equivalent of custodial interrogation under this Court's cases under Miranda or under Rhode Island versus Innis.

That requires an added degree of compulsion above that which is inherent in custody itself.

That simply is not present.

This Court also said in Innis that "interrogation" means words or actions on the part of the police, that police should know are reasonably likely to provoke an incriminating response.

But one has to read that in conjunction with the other requirement and the other part of the definition of interrogation, and that is, it has to reflect compulsion above and beyond that which is inherent in custody itself.

That simply... that test is not made here, and this Court, reversing the Rhode Island Supreme Court in Innis, noted that where two patrolmen were talking in a patrol car in the presence of the defendant and expressed their concern about some child at a school for the handicapped finding the shotgun that Innis had concealed, this Court said that the Rhode Island Supreme Court correctly found that there was some degree of subtle compulsion but that was not enough.

And there, we have police doing the talking right in the defendant's presence and the defendant, of course, in the back of the patrol car was a captive audience.

So, we submit that the standard of Innis is simply not met in this case.

Very simply, there was no interrogation within the meaning of Innis, which clarified Miranda.

This Court said in Innis also that not all statements obtained after one has been arrested are necessarily barred from use and that totally volunteered statements do not violate the Fifth Amendment privilege.

We have cited to this Court the Seventh Circuit's decision in United States ex rel. Church versus DeRobertis.

There, Kelly Church, the older brother of Michael Church, asked the police to please place him in the cell with his brother Michael, and he told the police he was going to try to persuade Michael to confess to get their younger brother, Casey, out of trouble.

Police, knowing Kelly was going to try to persuade Michael to confess, did place him in Michael's cell.

The Seventh Circuit said that is not the equivalent of custodial interrogation by the police under Rhode Island versus Innis.

Unidentified Justice: Mr. Roberts, are you asking that we cut back on Rhode Island against Innis?

Mr. Roberts: No, Your Honor.

I am simply saying that the standard you enunciated there does not apply to the facts of this case.

Unidentified Justice: You don't think this is just a fact bound application of Innis?

Mr. Roberts: No, Your Honor, because whether or not it was interrogation is a question of law, and I am submitting that as a question of law the Arizona Supreme Court was wrong.

But what I am saying was, the Seventh Circuit rejected a similar attack by Michael Church in the case we have cited in our brief.

The approach used there was a "but-for" test, and I submit to you with all respect, that is exactly what the Arizona Supreme Court has applied here.

Michael Church says,

"But for the police putting my older brother in the cell with me and knowing when they put him there that he was going to try to persuade me to confess, I would not have confessed. "

Well, Kelly Church was successful.

His brother later asked for a pencil and paper and wrote out a confession.

Here the Arizona Supreme Court has said, and I do not think I oversimplify, the police simply cannot let the defendant's wife talk to him even at her request and against their advice and stand there and listen.

That is the holding of the Arizona Supreme Court.

Church rejected a similar claim and we ask this Court to do the same.

Unidentified Justice: No charge had been filed yet, or what?

Mr. Roberts: I think it would be critical, perhaps in a Sixth Amendment context, Your Honor, but respondent has conceded at page 9 of her answering brief and the Arizona Supreme Court's opinion makes it abundantly clear that they decided this on purely Fifth Amendment grounds.

Let me put it this way.

I don't think under the circumstances of this case it would make any difference, Your Honor.

I don't think there would have been a Sixth Amendment or a Fifth Amendment violation because there was no interrogation.

There was no compulsion by police.

Neither was there any secrecy or surreptitious interrogation.

Unidentified Justice: What if the right to counsel had been invoked?

Mr. Roberts: Well, if the right to counsel had been invoked, Your Honor, I would be taking precisely the same position because what was it police did?

She wanted to talk to her husband.

They allowed her to.

They had a policeman stationed there for valid reasons, the trial court found after the suppression hearing even though the Arizona Supreme Court did not mention those valid reasons.

The line of cases this Court has decided under the Sixth Amendment, Massiah, Henry, Olton versus Maine, cases like that have been concerned with surreptitious questioning by an informant or agent of the police.

No one disputes here... it is conceded, plainly conceded, that Linda Mauro was not an agent or informant of the police.

Yet it was at her request, her idea to see her husband and certainly nothing was done surreptitiously.

The testimony of Detective Manson at trial and at the suppression hearing was that they were in a small room, Captain Latham's office.

It has a few chairs, bookshelves, and Captain Latham's desk but no one was seated at the desk.

They were seated in chairs in the middle of the room and Detective Manson, who had told Linda Mauro she might see her husband but he was going to be present and he was going to record it, sat within three to four feet of Mr. Mauro with a tape recorder on top of his knee.

He had his legs crossed and the tape recorder was on top of his knee.

The trial court specifically found Mauro knew the police were listening, the man was only three feet from him, and that he was also being recorded.

Unidentified Justice: Well, Mr. Roberts, do you think the result would be any different if the police had simply planted a tape recorder on the defendant's wife and let her speak to he defendant so that it wasn't obvious to the defendant?

Mr. Roberts: If you mean, Justice O'Connor, simply planted it on her but all other circumstances remained the same?

Unidentified Justice: No policeman present listening, but they hear through the tape recorder planted on her.

Do you think the result would be any different?

Mr. Roberts: I don't believe it would, Your Honor, because still there is no official police conduct.

There is no compulsion that is required under Innis.

As a matter of fact, this Court recently decided a case, not precisely on point but similar in some respects, the name of the case, I am sorry... Kuhlman, Kuhlman versus Wilson where Mr. Wilson was placed in the cell of an informant, Bennie Lee.

Now, the police had told Lee, now just listen, don't try to stimulate conversation about what he has been charged with, just listen.

And this Court upheld the admission of statements that Wilson made to Lee on that basis, and of course that was surreptitious.

I mean, Wilson didn't know that Lee was a government informant and he certainly didn't know he was being recorded, and we don't even have circumstances like that here.

The Arizona Supreme Court--

Unidentified Justice: Mr. Roberts, can I just refresh my recollection.

Justice White asked you if it would make any difference if there had been an invocation of the right to counsel.

Mr. Roberts: --He did invoke his right to counsel.

Unidentified Justice: I thought he did, yes.

I see.

So that it is a case in which he had already asked for counsel?

Mr. Roberts: Yes, Your Honor.

Fifteen minutes previously he had asked for counsel.

Police had ceased questioning him.

Unidentified Justice: Did he ask for counsel as well as wanting to be silent?

This brief exchange between himself and his wife occurred at approximately 11:00 o'clock, 15 minutes later.

Unidentified Justice: I suppose it would have been different if the police had secured someone... had asked his brother to go talk to him and get out of him what he could?

Mr. Roberts: I think, Your Honor, it would be a closer case because then you have the idea--

Unidentified Justice: Of approaching him--

Mr. Roberts: --Yes, originating with the police, and they are trying to get the brother to do something for them.

But those aren't the circumstances of this case.

The Arizona Supreme Court further held, and we submit most erroneously, that the State could not even use this brief tape in rebuttal, and in so doing it relied upon this Court's holding in Wainwright versus Greenfield.

We submit that was grievous error because this tape was used only in rebuttal.

The trial court's findings, which I urge you to scrutinize, are at pages 216 through 220 of the joint appendices, and he made very complete and specific findings on all of these matters.

The trial court held that... well, first let me set the stage.

Let me tell you what defense counsel had done in building the insanity defense.

First of all, this tape was not needed and certainly was not used to prove that Mr. Mauro committed the murder.

He admitted that to numerous people at a Circle-K shortly after he had done it.

It wasn't needed to prove the act.

All it was needed for was to show his mental state to rebut his insanity defense.

What defense counsel had done was to put on the stand Bruce Griffin, a defense attorney, who say Mr. Mauro the day of the murder, November 23rd, 1982, but he saw him later in the day after Mauro had talked with his wife, later in the day.

Everything the defense counsel presented on the day of the murder, so far as the conversations, or later in the day after the tape between Mauro and his wife.

Mr. Griffin described Mr. Mauro, and I summarize but fairly, as a salivating or slobbering catatonic madman.

That was the gist of his description.

Then, relying upon their psychiatrist, the defense psychiatrist, Dean Gerstenburger, Mr. Gerstenburger also observed Mauro later in the day, even later than Mr. Griffin observed him.

Gerstenburger got in a good many hearsay statements from Mr. Mauro in his response.

But more important than that, Gerstenburger relied upon a tape recording, Exhibit 172, which was admitted at defense counsel's request, a tape recording between another defense attorney, Donald Bayliss, and Mr. Mauro.

Now, Your Honors, what is so important to realize about this, and I know you have either heard the tape or you will, is when you hear Mr. Bayliss asking Mr. Mauro questions, and this is on the day of the murder but later than the conversation between Mauro and his wife, when you hear Bayliss asking him questions what you hear in response from Mauro, and that's why defense counsel wanted it before the jury, is unintelligible animal-like sounds more similar to grunting and moans than anything else, thus portraying him to the jury as an incoherent, irrational person sounding more like an animal than anything else.

Unidentified Justice: --Mr. Roberts, let me ask you something.

Do you think the Arizona court initially decided this case on the basis of the Fifth Amendment?

Mr. Roberts: Oh, they initially and exclusively decided this case on the basis of the Fifth Amendment.

Unidentified Justice: Say it again?

Mr. Roberts: They initially and exclusively decided this case on the basis of the Fifth Amendment and this Court's holding.

Unidentified Justice: Well, then isn't all the talk about the Sixth Amendment in Greenholtz just pure dicta?

Mr. Roberts: In Greenfield, you mean, Your Honor?

Unidentified Justice: Doesn't that defeat you?

Mr. Roberts: I think not, Your Honor, because they cited no Arizona cases and no Arizona rules of evidence and no Arizona law for not allowing this in as rebuttal.

They relied exclusively on this Court's decision in Greenfield.

Had they had some Arizona law or some Arizona rule of evidence they wished to rely upon, they would have but they did not.

They relied upon this Court's decision.

Unidentified Justice: I can't get away from the fact that this is just a pure factual application of the Innis case, and all your talk about Greenfield and the Sixth Amendment is rather by the way.

Mr. Roberts: Well, Your Honor, I agree with you that it should be decided and reversed on the basis that there was no interrogation.

I agree.

But what I am saying is, if the Court disagrees with that, our position is that it was not fundamentally unfair to allow the prosecutor to use this brief exchange between Mauro and his wife to show several things.

That is the reason we present that argument also.

The trial court found it was probative, the most probative and relevant thing that the prosecutor could present in rebuttal for the following reasons, and please let me apprise you of those.

Number one, it showed more plainly than anything else that prosecution could present Mauro's state of mind closest to the time he committed the murder.

The tape between Mauro and his wife was the closest thing to the time he committed the murder.

Defense counsel, in a lengthy cross examination of Linda Mauro who was on the stand at least three days, had also through that examination and through eight pages he devoted in closing argument, attempted to portray her to the jury as being at least partially, if not wholly responsible for the child's brutal murder by suffocation.

Having done that, the trial court concluded, it was legitimate and not fundamentally unfair to allow the prosecutor to let the jury hear the tape where they could hear Mauro's voice, judge for themselves his thinking, his intimations, his pauses, and hear his wife's voice because of the accusations and implications that defense counsel had been making against her.

It was a most effective thing.

The key question here--

Unidentified Justice: I must confess, I am a little puzzled.

What is the relevance of his wife's voice?

Mr. Roberts: --The relevance of hearing his wife, Your Honor, was that defense counsel had attempted to portray his wife as responsible for the murder.

This tape--

Unidentified Justice: I still don't understand.

Mr. Roberts: --Well, if when you read--

Unidentified Justice: This was offered in evidence to show that his wife was not responsible for the murder?

Mr. Roberts: --No, no--

Unidentified Justice: To rebut the claim of insanity of the--

Mr. Roberts: --No, Your Honor.

No, that wasn't the purpose for which the State offered it.

The State offered it to rebut his claim of insanity.

Unidentified Justice: --It's not her voice, it's what she said, you mean?

It wasn't her voice?

Mr. Roberts: Well, the trial court held that both were important, Your Honor, because you can't, on a piece of paper you can't get intonations and pauses.

That was simply one of the trial court's findings.

Unidentified Justice: For him the tape was important because the mere tone and everything was important, but for her it was what she said that was important to the jury, right, that it was clear she hadn't had anything to do with the murder?

Mr. Roberts: Oh, yes, I agree with that, and that was simply one reason the trial court gave, but you are correct, Justice Stevens.

The primary reason the State introduced it was to rebut this insanity defense.

I am merely saying the trial court found additional reasons to allow it also, and of course the nature of what Mauro said in that very brief exchange shows better than anyone could that the man was rational, at least at that time that he spoke to his wife and something else--

Unidentified Justice: What was the Arizona Supreme Court's response to this argument?

Didn't they say, you could have done the same thing without listening to the tape?

Mr. Roberts: --No, Your Honor.

They said, we'll let you do something but not the same thing and not as effective, and what we'll let you do is put carefully framed questions to the witnesses so they can describe his general demeanor and whether or not he was generally able to speak rationally.

Well, of course that's fine because defense counsel--

Unidentified Justice: Generally, and in this particular case too.

I mean, in this particular interview, that you could have described the manner in which he talked.

Mr. Roberts: --I don't... well, perhaps we read the opinion differently at that point Your Honor.

Certainly they said you can't make specific reference to this conversation.

Unidentified Justice: You can't quote it?

Mr. Roberts: You can't quote it.

Now, perhaps you could have said, well, did what he said seem to be rational.

But the effect of that is what, when the jury has before it a defense tape where they hear him moaning and groaning like an animal in response to Mr. Bayliss's questions.

Unidentified Justice: And you couldn't have testified he was not moaning and groaning like an animal here?

Mr. Roberts: Certainly we could have done that, Your Honor, but it would not have been as effective.

What I was about to point out here is that a significant distinction between this case and Greenfield also is that Greenfield invoked his own Miranda rights and this Court found it fundamentally unfair because of the implicit assurance in Miranda to later let the prosecutor impeach him with that, which the prosecutor did in his case in chief, incidentally.

So, what we have here is not a person relying on his own Miranda rights.

There was no ambiguity of silence, which this Court said could unfairly penalize an innocent person because as the Court pointed out, the innocent as well as the guilty may invoke the right to silence and the right to consult with counsel.

Unidentified Justice: He was invoking his own Miranda rights when he said he wanted a lawyer before he testified, wasn't he?

Unidentified Justice: Well, to the extent he invoked Miranda rights, they were his own Miranda rights?

Mr. Roberts: That is correct, Your Honor, but not in the exchange with his wife.

In the exchange with his wife he told her to shut up and get an attorney.

He didn't rely on his Miranda rights.

Unidentified Justice: You mean, he didn't ask her for warnings before he spoke to her?

I don't understand you.

Mr. Roberts: Okay.

Your Honor, there's two conversations involved.

There was one at 10:45, 15 minutes before the tape--

Unidentified Justice: Right.

He involved his--

Mr. Roberts: --That is correct, Your Honor.

Nobody ever gave any testimony about that, about his invoking his right to remain silent.

That wasn't given.

The tape 15 minutes earlier when his wife saw him, there he doesn't rely on his rights.

He doesn't invoke his rights.

He says,

"You shut up. "

"You can get a public attorney, get one. "

That's not Greenfield.

He is telling somebody else.

Unidentified Justice: --Well, the question, as I understand, is whether the previous invocation of Miranda rights, and asking for a lawyer, tainted this conversation because he wasn't given a lawyer, and the question is whether this was interrogation or not.

Isn't that the whole case?

Mr. Roberts: Yes, Your Honor, but going back to the first point, and as I have argued it is not interrogation.

Unidentified Justice: I understand your point.

Of course, if one... if you take the view of the Arizona Supreme Court he adequately invoked his Miranda rights and he wins.

If you disagree with him on interrogation, he loses.

Mr. Roberts: That's true.

That's true.

But I don't see how--

Unidentified Justice: I don't understand the invoking Miranda rights in conversation with his wife.

I'm just kind of puzzled.

Mr. Roberts: --What I am saying is, he did not invoke his Miranda rights.

He told her to use her Miranda rights.

That's all I'm saying.

Well, that's a distinction from Greenfield.

Greenfield invoked his own rights.

Unidentified Justice: There are a lot of distinctions from Greenfield.

I just don't understand what they've got to do with the issue.

Mr. Roberts: We have also cited to this Court the case of Nichols versus Wainwright, and there the Eleventh Circuit did not find it impermissible for the prosecutor to use as impeachment a statement that the defendant made one-half hour after his arrest.

Now, at the time of his arrest Nichols had invoked his Miranda rights, right to remain silent, the right to have counsel.

He invoked that, but a half-hour later he made a statement saying that he did what he did because of duress.

Well, Nichols didn't even take the stand as Mauro did not take the stand.

But his defense attorney was able to get in that testimony though another witness, through a police officer who said that,

"Yes, he told me he did what he did because of duress. "

Now, the Eleventh Circuit said there is nothing in Greenfield... or Doyle versus Ohio, that prohibits this use of it because what this man did was rely on his Miranda rights, but then he argued... his defense attorney argued and got in evidence that something he did post-Miranda warning, when he made his statement about duress, proved his innocence, and they said, when you are going to use post-Miranda statements like that, and specifically rely on their proximity in time to your arrest for your defense, then we don't believe Greenfield or Doyle prohibits the prosecution from impeaching you with even the defendant's own prior silence.

This Court has said, and even if the Court should disagree about there being a Fifth Amendment violation, this Court has said in cases such as Harris versus New York and Oregon versus Haas, that even where a Fifth Amendment violation has occurred, and we submit one did not here, that that does not mean the State is forever prohibited from using the evidence in any fashion thereafter.

The Court will well recall that those cases involved absence of Miranda warnings, or proper Miranda warnings.

Defendants who took the stand and then were impeached with prior inconsistent statements because they were voluntary... and let me point out here, there has never been any question that Mauro's brief comments to his wife were voluntary.

The trial court so specifically found, and I point out, Dr. Gerstenburger, the defense psychiatrist, himself said that the comments were voluntary and that they showed that at that moment that Mauro made them, he was much more in touch with reality than he was at the times later in the day.

Why was that important?

Dr. Gerstenburger testified that Mauro fluctuated in and out, in and out of reality for three weeks prior to the day he committed the murder.

So, as the trial court noted, it was extremely probative and relevant for the jury to hear this short tape between him and his wife to see how much in touch with reality he was, with reality he was, at the time closest to the murder.

But in any case, in Harris versus New York and in other cases, this Court has said as long as the statements are voluntary, and they were here, and the trial court made a separate finding they were voluntary, knowing and intelligent, he made a separate finding on all three prongs, that they may be used in impeachment.

That is precisely what was done here and we submit there was nothing... we submit, number one--

Unidentified Justice: Was it impeachment of what in both of those cases?

Was it impeachment of live trial testimony?

Mr. Roberts: --Yes, it was impeachment of the defendant who took the stand, Your Honor.

Unidentified Justice: Showing that he was perjuring himself?

Mr. Roberts: That's correct.

Unidentified Justice: That isn't the case here, is it?

Mr. Roberts: No, the one we had is, we were impeaching defense evidence that he was simply a babbling animal later in the day.

Unidentified Justice: That's a little different thing from saying, we're going to allow it to be used in order to protect the integrity of the trial system, if somebody tries to perjure himself at trial, we'll let it in.

But this is just... you're really saying to refute anything that can come in?

The whole trial is just a refutation of things, isn't it?

Where do you draw the line?

I can see the line between allowing it in to prevent perjury and others, but I don't see the line you're drawing.

So long as you're refuting something.

Mr. Roberts: Yes, Your Honor.

The Nichols case, decided in the Eleventh Circuit, the defendant did not take the stand either.

But the statement came in, nonetheless.

And the Eleventh Circuit was considering this Court's holdings in Greenfield and Doyle.

You are quite right, Your Honor, the circumstances and the rationale are different.

But what I am saying, I don't see anything fundamentally unfair, and of course I am analogizing the circumstances... I am analogizing to Harris versus New York and Oregon versus Haas, and saying that, keeping in mind the concerns this Court voiced there, because I believe, if I am not incorrect, I believe it was Justice Blackmun who said in Oregon versus Haas,

"We are, after all, engaged in a search for truth in a criminal trial, so long as that search is properly surrounded by the proper constitutional-- "

Unidentified Justice: Is it not correct, though, that in this case the tape was... the Arizona Supreme Court said it would be all right to use the tape, to play it to the psychiatrist who could then testify by interpreting this, as to how rational--

Mr. Roberts: --Yes, Your Honor, they could use that in their opinions, but the defense still has the benefit of showing the defendant as an unintelligible person making animal-like sounds, with the tape, a live tape they can play to the jury, and that's the impression the jury has the rest of the day.

There's nothing to counter that.

Unidentified Justice: --They wouldn't treat it as countervailing evidence that a psychiatrist said,

"Well, I listened to him at this particular time and he was perfectly rational. "

You mean, they just wouldn't believe the psychiatrist?

Mr. Roberts: No, I am not saying that, Your Honor.

I am saying it certainly wouldn't be the best rebuttal.

Unidentified Justice: It certainly would show that he did not always talk in the way in which he was recorded on one particular point in time.

Mr. Roberts: That is true, it would, Your Honor.

But it would not have been the most effective rebuttal.

Our position is, Your Honor, number one, that there was simply no interrogation under this Court's definition in Miranda and Innis, and even if there was, there was nothing fundamentally unfair in allowing this to be used simply in rebuttal.

Unless the Court has questions, I would like to reserve my time.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

We'll hear now from you, Mrs. Walsh.

ORAL ARGUMENT OF KATHLEEN KELLY WALSH, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Walsh: Thank you, Mr. Chief Justice, and may it please the Court:

I would agree with what Justice Blackmun was saying, that perhaps this is just merely a case of factual application of Rhode Island versus Innis to the situation that the Arizona Supreme Court chose to find that the activity of the police department in Flagstaff, Arizona was nothing more than the functional equivalent of custodial interrogation.

This Court in Rhose Island versus Innis defined the functional equivalent of custodial interrogation as being specifically any activity that the police engage in, in which they know that incriminating statements were likely to be made.

Here you have an absolutely clear case.

The police knew that incriminating statements were likely to be made.

In fact, two of the police officers indicated specifically that they knew that Linda Mauro may have been involved in the crime itself and they were somewhat in the dark about it, or they were afraid that Bill and Linda Mauro might concoct their stories or might try and get their stories--

It also involves some type of activity, some sort of active role such as allowing this conversation to commence.

Unidentified Justice: Is that an active role, to allow a conversation to come in?

The Fifth Amendment talks about compulsory self-incrimination.

Miranda talks about the coercion of the station house environment.

And to simply let a man talk to his wife doesn't seem to fit in under those heads.

Mr. Walsh: Mr. Chief Justice, I would disagree specifically with that because the police department controlled whether or not the conversation took place.

You have to look at the scenario.

The police said to Linda Mauro, you may speak to your husband but you will be taped and we will be present.

Now, take a step back into Bill Mauro's shoes.

Unidentified Justice: They tried to talk her out of it, didn't they?

Mr. Walsh: One of them did, but the supervisor said no.

Unidentified Justice: Is it necessary that more than one of them do it?

Mr. Walsh: Pardon?

Unidentified Justice: I mean, not only didn't they instigate it, but they tried to talk her out of it.

They did try to talk her... well, the original police officer tried to talk her out of it because she was emotionally upset.

However, when he went in to his supervisor, his supervisor said,

"Sure, I don't see a problem. "

"You go in, you listen, you take a tape recorder in with you. "

I think that this whole issue of control was what struck the Arizona Supreme Court in defining that this was the functional equivalent of custodial interrogation.

You have Bill Mauro who is sitting there, not knowing what's going on, necessarily.

He doesn't know his wife is going to come in.

He doesn't know the police officer is going to be tape recording this conversation.

May I interrupt you, counsel, at that point?

Mr. Walsh: Yes, Justice.

Unidentified Justice: Didn't the trial court find that the defendant did know, was told that the conversation would be taped?

Mr. Walsh: The trial court did say that.

However, the evidence and the testimony from all three of the police officers who testified was that no, he did not know, and the Arizona Supreme Court did find that, no, he did not know.

Unidentified Justice: There is a conflict between what the Arizona Supreme Court found and what the trial court found?

Mr. Walsh: Yes, I believe so.

He did not know that the wife was coming in.

They just came into the room.

Unidentified Justice: The tape recorder was in plain view, that's not debated, is it?

Mr. Walsh: No, that is not debated.

In fact, the presence of the tape recorder is not necessarily relevant.

The same result would occur if it were the police officer testifying as to the conversation itself, or whether a tape recording was actually admitted.

I don't believe that the tape recording in and of itself is the operative factor here.

I think the fact that the police officer was in the room, listening to this conversation, he was not told that this conversation would take place.

Unidentified Justice: You would agree, I suppose, that the tape recorder would perhaps be more influential with the jury than the verbal testimony of a police officer?

Mr. Walsh: I would agree with that.

Unidentified Justice: Mrs. Kelly, what is the point upon which you just said that the trial court, the Superior Court and the Supreme Court of Arizona disagreed?

Mr. Walsh: Well, I believe that the trial court found that Mr. Mauro knew that his wife was coming in and knew that the police officer was going to record the conversation.

Unidentified Justice: Whether he knew in advance... he surely knew when she in fact came in, when the police officer in fact came in and sat down, that that was the situation.

Mr. Walsh: Yes, but I would submit that that is a highly coercive situation.

She is hysterical and the tape bears this out.

She is crying.

She is sobbing.

He has not seen his wife since he left the house.

Unidentified Justice: It's not enough that it be coercive as a matter of fact.

It has to be coercion produced by the police under our cases.

Wouldn't you agree with that?

Mr. Walsh: I would agree that it has to be coercive in that situation, yes.

But I believe that the police, going into the room with the wife who is hysterical, the police officer testified that she was upset, in fact, that's why he didn't want her going in there, that allowing her to go in and listening to the conversation they knew that it was likely that there would be incriminating statements made.

It's like the excited utterance exception to the evidentiary laws.

Unidentified Justice: But you are suggesting that if the police know that some incriminating statement is likely, then it is interrogation on their part, but I think you are forgetting the necessity that the police have produced the coercion.

Mr. Walsh: But I think the police did produce the coercion by allowing the two to get together.

I think that it's a highly coercive situation, when you look at the facts of the case.

A child is dead.

They have not seen each other since he left the house with the suitcase.

She is an emotional wreck at this point in time, and because of that, of course, it's coercive.

Of course, like an excited utterance, you can expect that somebody is going to say something, and they're not going to be thinking about preserving their Miranda rights in this situation.

This Court, in Rhode Island versus Innis, also touched upon the fact that incriminating statements specifically include any statements introduced, whether they are inculpatory or exculpatory, as long as they are produced by the prosecution.

I think it's not necessarily relevant that these statements were admitted in rebuttal as opposed to admitted in the case in chief, because they were inculpatory and they were admitted on behalf of the prosecution to show the evidence of sanity.

Unidentified Justice: Were these statements the result of questions?

Mr. Walsh: No.

The brief exchange was--

Unidentified Justice: Does Miranda require questions?

Mr. Walsh: --No, I don't believe that Miranda requires questions in and of itself.

I think that Rhode Island versus Innis touched on that in defining the functional equivalent.

You don't need to necessarily ask the questions.

I think Miranda does not require specifically that questions be asked.

I think it's the coercive police activity that you find that.

Unidentified Justice: You assert here, and I guess you have to assert, that the mere demonstration that you are rational constitutes an incriminating statement.

I mean, it wasn't the substance of anything he said that showed him to be guilty of a crime, it was just the fact that he was rational?

Now, there are just a million things the police could do that would produce that result, just walking in with his breakfast and saying,

"Here's your breakfast. "

"How are you feeling this morning? "

And he says,

"Well, I'm fine. "

"How are you? "

Now, the police are not allowed to do that either, because that is causing him to incriminate himself?

Mr. Walsh: No, because I think as this Court has mentioned, there is contact between a defendant and police, jailers, at all times, that that could produce that kind of conversation.

Unidentified Justice: So then, what's wrong with what happened here?

I mean, what was introduced was not that he blurted out, "Yes, I did it", and they are introducing that at the trial.

The only thing they are introducing is the fact that the man was rational.

Mr. Walsh: First of all, he did blurt out,

"Yes, I did it. "

"You tried as best you can to stop me. "

Unidentified Justice: Right, but that wasn't the purpose for which it was allowed to be introduced?

Mr. Walsh: No, it was not.

It was introduced in order to rebut the insanity defense.

But first of all it is up to the prosecution to prove sanity beyond a reasonable doubt.

Unidentified Justice: So, any demonstration of sanity while he is at the police station constitutes incrimination and the police cannot do anything to him or with him while he is at the station that might let him show that he is sane?

That's rather an extreme position, isn't it?

Mr. Walsh: That would be an extreme position, but I think that what happens here is that the police officers brought the husband and the wife together specifically to create a situation where incriminating statements might be made, and it--

Unidentified Justice: I would agree with you if they tried to introduce it to show that he said he had committed it, yes.

But all they are introducing it for is to show that he was sane, that's all.

Mr. Walsh: --I think the problem with that is that if you give the fact that these are Miranda violative statements, you can't say that Miranda is... that if you have a Miranda violative situation and you raise the insanity defense, you waive your Miranda rights or any other rights protected by the Constitution.

What you would be saying is that, of course they couldn't introduce these statements otherwise, but if you invoke the insanity defense then indeed you are waiving your right to exclude Miranda violative statements.

I would submit that that would be an unfair result and an unfair burden to legitimate criminal defendants who raise the insanity defense legitimately, as it was in this case.

Unidentified Justice: Well, you then have to be very careful about talking to any prisoner who is in custody if you think he is going to be raising an insanity defense.

You can't talk to him about anything.

Mr. Walsh: I don't think--

Unidentified Justice: Because as you say, it's not just the recording of it.

The recorder didn't matter.

You shouldn't be able to testify that the man seemed to be rational.

You really have to keep him incommunicado.

Mr. Walsh: --I think the Arizona Supreme Court addressed that issue.

I think that they can testify as to behavior, but they cannot provoke a situation, as they did here, by putting the husband and the wife together.

Granted, it was Linda Mauro's idea, but I don't think... you know, they can still testify as to behavior.

Unidentified Justice: It doesn't make any sense to talk about provoking a demonstration of rationality.

One can provoke a confession, yes, I committed the crime.

But here you are talking about provoking a demonstration of rationality and that seems to me a very strange concept.

Mr. Walsh: I don't think... they were not provoking rationality, per se, but they were attempting to get anything they could to use against this guy or his wife in the prosecution, and they introduced it and there were incriminating statements as far as committing a crime.

They introduced it in order to show sanity.

The thing of it is... and there is a little bit of a problem with the reason they did it.

They say that... or at this point they attempt to... the State attempts to raise an argument that because an attorney testified as to behavior, and because a tape was admitted, that another attorney, defense attorney, took between the client, Mr. Mauro and himself, that somehow there was a waiver which allowed--

Unidentified Justice: Supposing that I am... let's take this in a classic Fifth Amendment context.

Supposing I am called before a Committee of Congress and they begin to interrogate me, and they say, "What's your name", and I say,

"I decline to testify on the ground that it might incriminate me. "

And the person asking the question says,

"Well, it's always been held that you have to answer your name and address. "

"You have to get to something actually incriminating. "

And I say,

"No, if I give my name it might prove that I am rational and therefore. "

--now, you wouldn't think that would be a permissible basis for invoking the Fifth Amendment before a Committee, would you?

Mr. Walsh: --No.

Unidentified Justice: Why does it make any difference here then, if Miranda is designed to secure the Fifth Amendment rights?

Mr. Walsh: I think that what the Arizona Supreme Court is trying to say is, they do not approve of the behavior of the police department and they are not going to be allowed to introduce this tape into evidence.

Unidentified Justice: Well, that's perfectly permissible, if they want to say that as a matter of Arizona law.

But what they did here, they said the federal constitution prevents them from doing it.

I mean, it's not enough just that the Supreme Court of Arizona doesn't approve of the behavior of the police department, to sustain a federal constitutional challenge.

Mr. Walsh: I think what the Arizona Supreme Court is saying is that if you have a violation of the federal constitution, if you have a Fifth Amendment violation as they hold here, then you cannot turn around and introduce it through the back door because the insanity defense is raised.

And what they are saying is that there is not going to be a situation where if you invoke or raise the insanity defense you are going to give up your Miranda rights, because the evidence would not have been allowed to show that the man committed the crime, assuming a Fifth Amendment violation.

What they say is they are not going to back-door it, because there are incriminating statements on there that he did commit the crime.

And it was taken by the police department in what the Arizona Supreme Court held to be impermissible conduct.

Unidentified Justice: I take it if the wife came to visit her husband and the police said, fine, go ahead, and no policeman was present, no recording device, and the lady talked with her husband and came back and then she said,

"I want to tell you what my husband said. "

and she told them and it was quite incriminating, and she says,

"Sure, I'll testify to it. "

would that be a violation of Miranda rights, just because the police permitted the wife to talk?

Mr. Walsh: No, I don't think you could say that that would be a violation of the Miranda rights, and I think under that situation, assuming there was no husband-wife--

Unidentified Justice: Even though the police let the lady in and they gave her permission and they thought to themselves, well, he may make some incriminating statements and she may tell us?

Mr. Walsh: --I think we are getting a little remote in time for something like that.

Unidentified Justice: Well, is there anything in our cases that indicates that that should... that the case should turn on that kind of a factor?

Mr. Walsh: I don't believe so, Justice O'Connor.

I think the case should turn on the fact that this was found to be the functional equivalent of custodial interrogation, and it should also turn on the fact that, assuming the Fifth Amendment violation, you cannot then introduce the tape into evidence.

Unidentified Justice: Well, I am more interested in whether there is a Fifth Amendment violation at all, and I don't see that there is.

I'm trying to understand from you what makes it a Fifth Amendment violation.

Mr. Walsh: The Fifth Amendment violation comes from the fact that... and I think the Supreme Court of Arizona pointed it out... if Linda Mauro had not asked to go in and see her husband, the police could not have gone in and taped statements made in that situation.

They could not interrogate him.

But what they did was, they put her in there and while she was not an agent of the police she was certainly the motivating factor that prompted him to make incriminating statements.

Unidentified Justice: Well, they granted the defendant's wife's request to talk to him?

Mr. Walsh: Yes.

Unidentified Justice: And sat there in plain view while she did so?

Mr. Walsh: Yes.

Unidentified Justice: And you say that is coercion?

Mr. Walsh: I say that under the circumstances of this case, that was coercive behavior, but if you take that tack, there is no appropriate waiver under Edwards.

Under Edwards you need some kind of initiation of contact from the defendant, and you need--

Unidentified Justice: In other words, you think that Edwards means that the police could not permit the wife to see him?

Mr. Walsh: --I think that once counsel... the right to counsel had been invoked, as it had in this case, then the police could not have gone in there with the wife, unbeknownst to the husband.

There was no initiation and--

Unidentified Justice: This was beknownst to the husband.

Mr. Walsh: --Not until she walked in.

He had no say-so as to whether or not he could see his wife.

He is sitting there.

They walk in, the wife, the police officer, and the tape recorder.

She is hysterical and she is sobbing and she is crying.

And she's blurting out things and he's blurting out things.

And I think under an Edwards analysis, no, you would not have the appropriate... and what has not been done in this case is to completely analyze the whole situation as under Edwards, not only as to initiation but as to the voluntariness.

First of all, you know, was it a free choice, and second of all, did he understand the consequences of what was going on when his wife walks in with a police officer, and that would get into his mental state as well as--

Unidentified Justice: Did he ask to see his wife?

Did he ask to see his wife?

Mr. Walsh: --No, he did not.

Unidentified Justice: Well, I thought the Attorney General said he did.

Mr. Walsh: I believe that the testimony... and there was a brief statement by the trial court judge that they both knew, but I believe that the testimony was, the consultation between Detective Manson and Linda Mauro did not include any statements to Bill Mauro by either Detective Manson or Sergeant Allen or Captain Latham, or anybody there that he would be... that he knew that the wife was coming in.

And while the trial judge did make an offhanded comment about... that he knew, I think that the testimony, if you go through the testimony of the police officers, there was no indication that he knew that his wife was coming in.

Unidentified Justice: Ms. Walsh, let me just see if I understand your theory.

You are saying that he had invoked his right to counsel, and under Edwards the police cannot initiate interrogation, and so that if the police officer had walked in unannounced with the wife and said to the man,

"Will you please tell your wife everything I've been asking you. "

that would have been clearly impermissible.

Or if he had said,

"I hope you'll talk to your wife while I sit here and listen. "

that would be closer, and you are saying it is just the functional equivalent if he just walks in and just sits down and listens, that they all boil down to the same thing?

That is your position, I take it.

Mr. Walsh: My position is that, yes, it would be the functional equivalent and that there would be no appropriate waiver.

Unidentified Justice: It's just as much interrogation if he implicitly says,

"I'd like you to talk to this lady. "

as if he says, "Please do"?

Mr. Walsh: That's right.

The police officers testified that basically what they went in there to do was find out what was going on, and I think it's also important to remember that it was possible to get the husband and the wife together and take care of the problem of escape by allowing... and take care of the problem of her safety by allowing them, if that's what their motives were, to speak in the jail facilities.

There was testimony that they could have... and then everybody knew that they were getting ready to take Bill Mauro over to the jail and there are facilities there that they could have allowed Bill and Linda to talk together, if that's what they had so desired to do.

The fact of the matter is, they wanted to find out what was going on.

They wanted to find out Linda's involvement.

They wanted to find out if the two were going to concoct stories.

And in doing that, their motive in going in there and listening and even taking a tape recorder in there was to accumulate incriminating evidence, to see what they could get.

I would submit that that, in and of itself, shows that the activity by the police department that was so condemned by the Arizona Supreme Court amounted to the functional equivalent of custodial interrogation under Rhode Island versus Innis, that the intent of the police officers by their own testimony was so clear, and what the Arizona Supreme Court was saying was, that activity is going to be condemned.

We are not going to allow in the tape recording which was made.

I think that the Arizona Supreme Court also said that just because you invoke the insanity defense, we are not going to make an exception for you.

We are not going to hold that your Miranda rights, even though they may have been violated, are going to... the fruits of the evidence drawn from that are not going to be allowed in through the back door, if you will, because you invoked the insanity defense.

I think for those reasons the Arizona Supreme Court was correct in finding that this was the functional equivalent of custodial interrogation and that the tape was correctly held to be suppressed by that Court.

Chief Justice Rehnquist: Thank you, Mrs. Walsh.

Mr. Roberts, you have four minutes remaining.

ORAL ARGUMENT OF JACK ROBERTS, ESQ. ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Roberts: Thank you, Mr. Chief Justice.

It is a little bit late, Your Honor, for respondent to be arguing an Edwards issue because the Arizona Supreme Court plainly decided this on the basis of the Fifth Amendment and Miranda and Rhode Island versus Innis.

Unidentified Justice: Why do you say that?

Mr. Roberts: That was the basis of the Arizona Supreme Court's decision, Your Honor.

Unidentified Justice: Because what?

Mr. Roberts: That was the basis of the Arizona Supreme Court's decision, not Edwards.

Unidentified Justice: No, but the Edwards is clearly relevant because that's what imposed the obstacle to the police interrogation, that he would ask for his... you know, he invoked Edwards.

Mr. Roberts: All right, Your Honor.

In response to that Edwards requires that police initiate contact.

Unidentified Justice: Well, but would you agree with my hypothetical, if they walked in together unannounced and the police officer said to the man,

"Would you please tell your wife the answer to the questions I have been asking? "

Mr. Roberts: Yes, I think I would agree with that hypothetical, Your Honor.

But that's not what happened.

Unidentified Justice: That's right.

But if he just said,

"Would you please talk to your wife and tell her everything you can remember? "

Mr. Roberts: Probably the same result.

That also is not what happened.

Unidentified Justice: As soon as you take away the question mark, then it's a different case?

Mr. Roberts: Well, you have no police initiation of anything here, Your Honor.

You just have them allowing his wife to see him, and that's the--

Unidentified Justice: What if the police officer had brought her to the station... she hadn't asked it... and said,

"We would like you to go in and talk to your husband and we would like to listen. "

and that's all they said to her and then they walked in exactly as they did?

Mr. Roberts: --A much closer and much tougher--

Unidentified Justice: What's the answer?

If they say nothing in his presence, other than what they said here, why is that a hard case at all under your theory?

Mr. Roberts: --Well, because there you at least have the police initiating... encouraging the wife.

Unidentified Justice: The difference between the two cases is that in this case she asked for and they initially turned her down, and then he talked to his boss and the boss said,

"No, take her in there. "

It would have been different if the boss had in the first instance said,

"Go get her and take her in there? "

That would be a different case?

Mr. Roberts: That would be a different case.

Unidentified Justice: Okay.

Mr. Roberts: But the other point I was going to make is, Mrs. Walsh is perfectly correct, the trial judge did say in his findings at pages 218 and 219 of the joint appendix that they were both told, that is, Linda Mauro and her husband, that they were being recorded.

Actually, Detective Manson, to keep the record straight, only told Linda Mauro that.

But the answer to that is, it was obvious when Mrs. Mauro walked in the room, all Mr. Mauro had to say was,

"Get out. "

"I don't want to talk to you. "

As a matter of fact, if you look at his last response in this brief exchange, that's what he finally told her,

"Don't talk to me. "

"Get out. "

That's what showed he was so rational.

He didn't refuse to see his wife.

Let me point that out.

It's not like Edwards where the jailer came and said, there's some police here who want to talk to you, and Edwards says,

"No, I don't want to. "

The jailer tells him, "You've got to", and then Edwards talks to them.

That's not the case.

He didn't have to talk to his wife.

He could have kept his mouth shut.

The trial court made that common sense observation also.

He chose not to.

He never said,

"I don't want to see my wife, get out of here. "

He talked to her.

And all the police did was stand there and listen.

It simply does not meet this Court's requirements under Innis or Miranda, and we respectfully ask the Court to reverse.